Dear Fellow Petitioners and Friends
Please find attached a file (contents also pasted in below) named
‘Guyana_petition_ForestBill2007_26Sep07’. This email is also copied to
the AFC Parliamentarians who have agreed to present the Petition to the
Members of the National Assembly on our behalf. This petition combines
the separate efforts of a number of persons. Please feel free to
circulate this updated draft Petition.
I am away from 28 September to 8 October, with no computer access
during that time. I am submitting this petition now to the AFC
Parliamentarians in the event that a sitting of the National Assembly
is convened on 11 October and before a further iteration of the
Petition can be ready - so that they can submit it on our behalf.
I would be happy to receive comments on this draft from you; however I
will not be able to read and act on those comments until sometime after
9 October 2007.
You can find a copy of Forest Bill 2007 on the GFC website, url =
http://www.forestry.gov.gy/. You can find the draft Forests Act 2004
and the Forest Bill 2007 in the August folder of
http://www.guyanaforestryblog.blogspot.com .
I am submitting separately to the AFC Parliamentarians only a list of
signatories received. You will have noted that I have not circulated
this list to date, in an attempt to protect signatories from
vilification.
Until later, Janette
GUYANA
COUNTY OF DEMERARA
In the matter of the WITHDRAWAL of
Bill number 21 of 2007:
Forest Bill 2007
PETITION
TO: The National Assembly of the
Co-operative Republic of Guyana
Public Buildings
Georgetown.
THE HUMBLE PETITION of we the undersigned citizens of Guyana who
respectfully request the withdrawal of Bill Number 21 of 2007, Forest
Bill 2007, is set out in three parts. Part 1 lists some observations on
individual sections in the Forest Bill 2007, with cross-reference to
the 6 February 2004 version. It notes a number of the sections and
clauses of the Draft Forests Act 2004 which have been excised from the
Forest Bill 2007 without explanation and justification for the
deliberate removal of some, and insertion of new clauses and sections
which, taken together, weaken the Forest Bill 2007. Part 2 sets out 11
general principles which we believe should guide the revision of the
Forests Act 1953 and all legislation. Part 3 lists some examples of the
many errors in Bill No. 21 of 2007 taken only from the first section of
Part 1 of the Forest Bill 2007, by way of illustrating the thorough
overhaul needed on this Forest Bill 2007 and which should now be
undertaken by competent technical persons.
The National Assembly should ensure that the key natural resources of
our country, on which the future sustainable development of Guyana
hinges, are managed as required by Article 36 in the National
Constitution 1980 and so as to maximize the net social benefit.
Background
More than half a century has passed since the 1953 Forests Act was
drawn up by the lawyer-forester W.A. Gordon to address the particular
problems of that era – primarily to create the classification of Crown
Forests (now State Forests), harmonise forestry-related legislation
scattered throughout other Acts with those in the new Act, de-link the
conservation and administration of forests from the revenue collection
focus of the Department of Lands and Mines, and create a Forest
Department.
2.1 The process of revising that 1953 Forests Act underwent several
iterations from the mid-1990s. The final publicly-available draft
Forests Act 2004 benefited from the vision for the forestry sector set
out in the National Development Strategy 2000-2010 and from broad
stakeholder consultations and international best practice at that time.
However, the legislative revisions of 1995-6 are now insufficient to
adjust to the newer international imperatives concerning trade in
tropical timbers and the need for independently verifiable proof of
legal and sustainable production.
The special hazard of Forest Bill 2007
Unlike the Draft Forests Act 2004, there are few safeguards in the
draft Forest Bill 2007 against a bureaucracy captured by special
interests. This change, a reflection of the exceptional profits to be
made from expanded Asian demand for raw materials especially in the
booming economies of China and India, deprives Guyana of the
opportunities to secure for our country a greater share in those
profits and without detriment to our long-term productivity. To make
that happen, we must ensure that the bureaucracy does not take to
itself discretionary powers without public oversight. Best
international practice is indeed in quite the opposite direction: to
capture excess rent through transparently-set charges, to reduce
discretion from bureaucrats, to insist on published criteria for
exceptional cases, and to increase public oversight especially through
parliamentary processes. Public notice has been reduced and highly
circumscribed. The draft Forest Bill 2007 was circulated only to you,
the Members of the National Assembly, on 2 August 2007 and only in
printed format. The draft Forest Bill 2007 and the ‘Final GFC Bill –
Nov 2006’ – were only placed on the GFC website sometime after 15
August 2007. The Draft Forests Act 2004 was more widely available in
print and electronic formats.
We note the simplicity and clarity of the Forests Act 1953 in
comparison with the convoluted and unclear wording in the Forest Bill
2007. This lack of clarity alone should cause this Bill to be sent
back for a thorough re-drafting.
We respectfully remind you of the historic responsibility before you to
review the Forest Bill 2007 section by section, clause by clause,
against the Draft Forests Act 2004, against the backdrop of the
changing circumstances of the forestry sector in our country today. We
urge you to be mindful of the urgent need to safeguard our sovereignty,
as well as seeking to ensure good governance, transparency in decision
making and accountability for decisions in all public institutions
charged with the administration of national patrimony. You may wish to
take note of a recent World Bank caution with respect to the award of
forest concessions, “Where the concession in effect transfers a public
property right into private hands, there may be traditional or
constitutional reasons to require higher-level approval, such as action
by the legislature, the head of government, or the head of state”
(Forest Law and Sustainable Development: addressing contemporary
challenges through legal reform. Law, Justice, and Development Series.
2007, p. 57. Washington D.C.: The World Bank).
We urge you to examine the systematic culling of all participatory
processes, oversight and best practice from the Draft Forests Act 2004,
including but not limited to the following fundamental revisions:
Part 1
Some observations on individual sections in the Forest Bill 2007, with
cross-reference to the 6 February 2004 version
1.1 Vesting of wide discretion and monopoly power in “the Commission”
1.1.1 There are over a dozen references in the Draft Forests Act 2004
to the Board of Directors of the Guyana Forestry Commission (GFC) and
none in the Forest Bill 2007. In its place, broad discretionary powers
are vested exclusively in the “Commission”. . Placing limits on a
discretionary power is a trend in modern legislation, aimed at making
public officers more accountable.
1.1.2 The over 30 references to the Minister in the Draft Forests Act
2004 have been reduced to fewer than five, thereby eliminating even the
nominal control by elected Ministers.
1.1.3 The Forest Bill 2007 transfers and enlarges broad powers to the
“Commission” without criteria for their use.
1.1.4 The procedures for competitive bidding set out in 16 (6) of the
Draft Forests Act 2004 have been neutered.
1.1.5 The provisions for indexation (against inflation and currency
movements) of volume charges and levies on forest produce and
administrative fees set out in s. 50(1) and for the charging of
interest on arrears (s. 51) of the Draft Forests Act 2004 have been
excised.
1.1.6 Fees for all applications under the Bill are dealt with in clause
80 – but are left to be determined by the Minister. The application fee
of US $20,000 for an Exploratory Permit (in 16 (2) of the Draft Forests
Act 2004) has been removed.
1.1.7 Discretionary power is granted in s. 13 (2) of the draft Forest
Bill 2007 to the Commission to waive a security bond; such a bond
provides the State with financial cover against environmental damage
and non-payment of charges, and was spelled out in s. 26 of the draft
Forests Act 2004.
1.2 Restriction of activities / Amerindian customary rights in State
Forests
1.2.1 Section 5. (2)(e) in the Forest Bill 2007 permits the granting of
a concession on claimed Amerindian land, thereby removing the safeguard
provided in the Forests (Amendment) (Exploratory Permits) Act 1997.
The saving of Amerindian customary rights, set out in Clause 17(3) of
the Draft Forests Act 2004 appears to have been excised.
1.2.2 Section 5. (2)(e) amounts to a saving of traditional Amerindian
rights in State forests, but there are two objectionable features to
it:
First, only rights, etc. held immediately before the coming into force
of the legislation will be saved. This freezes traditional rights at a
particular date, whereas the customs, practices and traditions of any
community of people are not static. If indigenous peoples were not able
to evolve and adapt to changing circumstances then they would have long
since become extinct. The restriction in this clause denies them that
freedom to adapt.
Second, only rights, etc. that are “exercised or performed sustainably
in accordance with the spiritual relationship of the group with the
land” are saved under this provision.
1.3 General saving of Amerindian rights – omitted
Clause 63 in the 2004 draft Forests Act has not been reproduced in the
draft Forest Bill 2007. That clause provided:
“63(1) For the purposes of this Act, all lands in State forests
occupied or used by Amerindian communities and all land necessary for
the quiet enjoyment by the Amerindians of any Amerindian settlement,
are deemed to be lawfully occupied by them.
(2) Nothing in this Act shall be construed to prejudice, alter, or
affect any right or privilege heretofore legally possessed, exercised
or enjoyed by any Amerindian in Guyana.”
This savings clause, in one form or another, has been in natural
resources legislation in Guyana from since the mid-nineteenth century.
The 2004 draft Forests Act, based on the 1989 Mining Act provision, is
strongly worded and could be construed as saving traditional rights
even in granted State forests.
Although clause 5(2)(e) of the draft Forest Bill 2007 saves traditional
rights in State forests, the omission of a clause comparable to 63(2)
set out above means that there is nothing to prevent the State from
issuing forest concessions on untitled Amerindian lands.
Further, although the Amerindian Act 2006 saves traditional Amerindian
rights in State lands/forests – this is expressly confined to the
provisions of that Act and therefore does not preclude the GFC from
issuing concessions on untitled lands. Finally, the omission of any
such general savings clause means that the provisions authorizing the
issue of a forest concession will probably operate to terminate
pre-existing rights over the area comprising the grant, at least in
relation to obtaining forest produce.
Guyana is unusual in not having a formal settlement procedure
associated with government attempts to declare public land as State
Forest or an area protected for conservation of (forest) habitat or
biodiversity. In the absence of integrated land use planning, such
declarations can appear arbitrary and unjust. There are ample and
detailed descriptions in the technical literature on the operation of
long-tested reservation and settlement processes, which should be built
into the revised Forest Bill. That should help to clarify customs,
privileges and rights associated with previous and current use of
natural resources. It could also provide the equivalent of a
roundtable for considering the increasing demands on natural resources,
and the conflicts which arise from increasing demographic pressure.
1.4 Private trading of public forest assets – s. 6
Clause 6. (1) among others in the Forest Bill 2007 could lead to the
legalization of the current illegal trading of forest concessions,
instead of requiring the GFC to develop and implement a Strategic Plan
for concession allocation before advertising new or repeat areas
(National Forest Policy of October 1997 (section III B 1 b) and the
National Forest Plan of February 2001 (section NFP320).
Given the present illegal trading of concessions, which has now
resulted in the concentration of the best stocked and the lion’s share
of State forests under the control of a few foreign companies, the
Forests Act should limit the transferability of concessions. The draft
Forest Bill 2007 does the opposite.
1.5 Grant/renewal of larger concessions – s. 8
The Commission is empowered to renew long-term large-scale forest
concessions in spite of their non-compliance with the terms of the
concession award (Section 6.(8)). This is predicated upon the approval
of a forest management plan and an annual operations plan for the
concession area sought. The rest of Forest Bill 2007 is entirely silent
as to substance or procedure applying to this requirement.
1.6 Exploratory permit – s. 9
The safeguards set out in the Forests (Amendment) (Exploratory Permits)
Act 1997 have been rendered useless as a block on piratical logging.
Clauses 9. (1), 9.(2)(b) among others in the Forest Bill 2007 allows
commercial logging during the period of an exploratory award (SFEP) so
as to recover a proportion of the investors' application fee and other
non-capital costs associated with gaining and operating the SFEP. As no
criteria are given, the investor can inflate costs to the point at
which the SFEP becomes indistinguishable from a Timber Sales Agreement.
1.7 Transfer of permits, concessions and licences – s. 15
This section needs revision to take account of the rampant illegal
sub-contracting of concessions which brings no economic or social
benefit to Guyana.
1.8 Community Forest Management Agreement (CFMA) – s. 11
What is striking about this clause is its obfuscation. It omits any
mention of rights to utilize forest produce in community forests, but
the substituted language does not spell out exactly what would be
permitted therein. Under sub-clause (2) it is provided (guardedly) that
a CFMA may help communities “benefit” from local forests but there is
no indication of how such benefits will come about. That some kind of
commercial activity is contemplated is clear because of the rest of the
provision that speaks of economic development and income generation.
This clause is also unconstitutional, at least insofar as it sanctions
the uncompensated appropriation of untitled Amerindian lands. Under
sub-clause (4) persons “having strong traditional ties to use of the
forest” must be given “a free and fair opportunity to join…” the group.
Since this formulation captures Amerindians who live on untitled lands
and possess traditional rights as recognised under the common law, the
law must provide for consultation with them, and in the event that they
(the Amerindians) do not wish to join the group, then the forest can
only be granted to third parties if said Amerindians are compensated
for the loss of their traditional rights.
The draft must therefore specify a procedure consistent with the
Constitution whereby persons fitting the description in 11(4) may be
promptly and adequately compensated if they withhold their consent –
which it fails to do [see recommendation for a formal settlement
procedure in 1.3 above].
1.9 Conservation on private lands – s. 31
It is not clear whether the provision requiring payment of compensation
[sub-clause (6)] meets the constitutional standard. In this respect the
Constitutional provision as amended in 2003 waters down the 1980
version, but even in its attenuated form the standard does not seem to
be met.
Under Article 142 of the Constitution as amended any law providing for
expropriation must require the “prompt payment of adequate
compensation”, but Forest Bill 2007 (s. 31) merely requires the payment
to the owner and lawful occupier “reasonable” compensation. These seem
to impose different standards (i.e., no mention at all of promptness –
an issue in expropriation cases in the Caribbean; and reasonableness
may be judged from a wider variety of considerations than adequacy).
Also, is a declaration under this provision intended to operate
indefinitely?
1.10 Code of Practice – s. 35
Any code of practice to be adopted will be an important document – it
will seek to regulate forest operations, breach of the code being a
criminal offence. This is a good thing, but to what extent will
stakeholders and rights-holders be able to contribute meaningfully to
the content of any such code of practice?
In answering this question, one is hampered by the guarded language of
the provision. 35(2)(a)(ii) merely provides that the Minister shall
notify the public of the “purport” of the proposed code and shall
receive written submissions thereafter. Written submissions are limited
to three aspects: the fact that a proposed code has been submitted to
the Minister, the purport of the proposed code and the location where
the proposed code may be inspected [see 35(2)(c)].
“Purport” means “purpose” or “intention” – this is not the same as
contents. Therefore on a very strict interpretation, does this
provision impose an obligation on the government to receive submissions
on the contents of the Code, as opposed to its mere intention or
purpose?
Semantics aside, and assuming that people are allowed to make
submissions on content, there is still no real obligation on the
government to take on board any comments so received. The government
has complete control over what goes into the Code – the GFC comes up
with it, they must “invite and receive” written submissions but do NOT
necessarily have to hold public hearings thereon, and thereafter
consultation is with the Minister. Nowhere in this is there a process
whereby non-governmental entities or persons can have a more meaningful
input. At the end of the day, all submissions can be rejected (i.e.,
consultation does not equal acceptance) for as the provision makes
clear, the Minister may either (a) adopt the code as is, (b) adopt it
with changes or (c) reject it.
Finally, although the Code is subject to negative resolution in
Parliament, in a situation of majority rule that is no protection.
And by the way, what happens if the Minister decides to reject the
Code? The draft is completely silent on this point – will it be subject
to further consultation or what?
1.11 Quality control – s. 42
Note that in coming up with guidelines by which timber is to be graded
and marked, the GFC may “exempt any class of persons, activities or
land”. [42(4)(c)]. This is yet another instance of discretionary powers
which do not spell out the reason for their existence. The provision
itself should give reasons defining the Commission’s power to make
exemptions.
1.12 Transfer pricing – s. 45
Section 45. (1) in the Forest Bill 2007 stipulates that the Forest
Products Marketing Council (FPMC) or a prescribed body will set the
true price of forest products traded. Standard neo-liberal economic
theory says that the free market will set the price, and this is
conventionally determined by the Cost, Insurance and Freight value
declared at the port of entry in the importing country, as a defence
against under-valuation and transfer pricing of exports. Beginning in
April 2007, for example, the FPMC began reporting higher sale prices
for purpleheart logs to the International Tropical Timber Organization
(Tropical Timber Market report) than the prices recorded in the FPMC
Market Reports circulated in Guyana. The discrepancies in the published
records of the FPMC should be reason enough for the Forests Act not to
empower this body to set the international prices of forest products.
1.13 Forest Officer – s. 53
Under 53(4)(a) a forest officer may “at any time, after being afforded
natural justice, be removed from office at the discretion of the
Commissioner”.
This provision is either poorly drafted or reflects retrograde policy.
Perhaps the Commissioner’s discretion to remove is constrained by the
results of the hearing, but the phrasing of the provision does not
necessarily suggest this. In any event, since Guyana already has
legislation governing employment and labour why is the Commissioner of
Forests being given a discretionary power such as this?
1.14 Powers to enter premises and conduct searches – ss. 54 et. seq.
Note all the powers to enter and search without a warrant. Since the
ammunition and narcotic offences of the late 1980s, this has been the
trend of legislation in Guyana – to whittle away at established common
law protections.
Allowing the police to stop and search individuals and vehicles or to
enter and search premises merely on reasonable suspicion opens the door
to abuse; in this draft Forest Bill 2007 the power is extended to
forest officers. This is an unjustifiable assault on civil liberties.
1.15 Powers to require answers – s. 61
Under this provision suspects must answer questions and even give a
signed statement. Do not be fooled by 61(2) since if one refuses to
answer under this apparent exception then such a course will impact
negatively on the suspect (i.e., an indication of guilt). This is
reinforced by the failure to make any such refusal to answer
inadmissible at trial.
This is a retrograde provision. However tough a stance towards criminal
activity it may encompass, it is against the trend in most civilized
countries where the right to silence (which includes the right to
remain silent during pre-trial questioning) forms a core component of
fair criminal investigations and a fair trial.
Given our oppressive history of policy brutality and forced
confessions, we should not be creating these powers. Let the State do
its investigative work and not invade the liberty of the subject.
1.16 Orders to desist – s. 62
Superficially read, this provision seems to operate as a substitute for
trial. On the mere suspicion of having committed an offence, a forest
officer can order a suspect to cease offending. Failure to abide by any
order made is an offence [see s. 68(a)(ix)]. But what happens to
persons who have rights under this or any other piece of legislation?
What procedure exists for establishing one’s legitimacy? How long does
an order made under this provision last? None of these issues is
addressed in this clause. In other words, what this provision means is
that persons may be deprived of legal rights upon the summary decision
of a State official, which is unlawful and unconstitutional.
Any order to desist should only be issued after an investigation is
conducted, and should in fact be issued by a neutral entity (magistrate
not forest officer).
1.17 Exemptions – s. 76
Another discretionary power: i.e, it gives the government power to
create special regimes outside of the protections conferred by this
Act.
1.18 Net forest revenue to the Consolidated Fund – s. 80
Clauses 80 (1)(d) and 80 (3) provides for only the royalties from small
concessions, the current State Forest Permissions, to be paid into the
Consolidated Fund. All the other forest charges would remain with the
GFC. This is just the opposite of repeated recommendations that the
GFC should have transparent and simplified charges, with the surplus,
net of operational expenses, to be paid into the Consolidated Fund.
The long-term GFC failure to pass over its surplus to the Ministry of
Finance provides an indication of the future fate of national wealth.
Part 2 – General principles that should guide the legislative process
2.2 Formulation of legislation by a participative process open to all
stakeholders (legitimately interested parties, not restricted to
primary stakeholders whose economic interests might be affected
positively or negatively by the legislation). The concentration of
previous discussions on bilateral debate between the Forest Products
Association (FPA) and the Guyana Forestry Commission (GFC), without an
independent chairman or professional facilitator, lengthened the
consultation period into years. As a result, the Forest Bill 2007 has
failed to adjust to the newer international imperatives concerning
trade in tropical timbers and the need for independently verifiable
proof of legal and sustainable production; these features were little
discussed at the time of the original formulation of the legislative
revision of 1995-6.
2.3 Given the geographic dispersion of forest-related stakeholders, a
concentration of consultation in Georgetown and restricted to industry
does not conform to best international practice.
2.4 Use of transparent process, with all relevant documents being
available on request to all stakeholders, perhaps for a nominal
administrative charge to avoid waste. The only justifications for
restriction of documents would be national security and commercial
confidentiality, with criteria defined and published openly prior to
the start of the legislative process.
2.5 During the consultations, participants treat each other
respectfully and have equal voices. Government agencies do not
over-rule other participants and do not have weighted votes. The
setting of some ground rules may be appropriate – for example, outside
the consultations, participants do not attribute views or statements
made during the consultations to named individuals or organisations.
2.6 Legislation and regulations are drafted with clarity of language,
using the simplest possible terms which are compatible with legal
specificity. The complex and at times ungrammatical language of the
Forest Bill 2007 needs to be thoroughly overhauled to improve clarity.
2.7 Technical wording and guidance can be drawn from FAO Forestry
Papers, the FAO Development Law Service and recent World Bank
documents, whose use should be conducive to greater clarity.
2.8 Harmonisation with other Laws of Guyana, avoiding duplication,
avoiding adding definitions unnecessarily – for example, on Amerindian
rights, privileges and customs – and removal of inconsistencies between
laws. There would be obvious advantages in harmonising forestry and
mining laws, especially as regards administration of concessions.
2.9 Providing for greater integration of laws, regulations and
procedures, especially in relation to integrated land use planning, an
integrated hinterland road network and the rehabilitation of a publicly
accessible integrated geographic information system – GINRIS, the
Guyana Integrated Natural Resources Information System, pioneered in
the late 1990s. Given the loss of maps and aerial photographs at the
GFC Head Office through neglect and flooding, the law should provide
for such maps (with associated textual descriptions) and GIS
(geographical information system) to be duplicated at regular and
frequent intervals in the National Archive. Public access and use
should be reserved only if explicit tests of national security or
commercial confidentiality can be proved; criteria should be built into
the law. Bearing in mind the increasing sophistication of Google Earth
and the international accessibility of such imagery, it would be
pointless for the government to seek to prevent access to what can be
obtained internationally. In particular, all State Forest boundary and
block maps, and all concession boundary maps, should be publicly
available. Such access will in any case be required for independent
forest monitoring if Guyana should seek a voluntary partnership
agreement with the European Union (EU) trading bloc for continued
exports of timber from Guyana into EU countries; under the EU Forest
Law Enforcement, Governance and Trade (FLEGT) process.
2.10 In best international practice, administrative discretion in law
is minimised. Where discretion is the alternative to prescriptions
covering a wide range of situations, criteria for the use of that
discretion should be included in the law. These criteria should be
explicit, objective and transparent. There should also be a public
appeals process associated with each instance of discretion in the law.
An appeals panel or tribunal should include at least two people not
employees of or associated with the national forest service;
association by membership of the Board of Directors or by employment as
an external consultant within the last two years would be examples of
disqualification from participation in such a panel or committee.
These provisions should apply to all levels of discretion, including
the Minister of Forestry, the Minister for Forestry, and the Guyana
Forestry Commission.
2.11 Setting out a formal settlement procedure in the revised Forest
Bill. In addition to the advantages stated in 1.3 and 1.8 above, that
should help to clarify the so far unresolved conflicts between mining
and other forms of land use, including forestry. The forest law
should have regard to the provisions in the National Constitution for
compensation for expropriated land.
2.12 The revised forest law should include wording which responds to
forest provisions in the UN Framework Convention for the Conservation
of Biological Diversity (CBD, which Guyana has signed/ratified) and the
Convention on International Trade in Endangered Species (CITES), where
such provisions are not already found in the Environmental Protection
Act of 1996.
Part 3
Some examples of the many errors in Bill No. 21 of 2007. Examples below
only from Part 1 and first page of Part 2.
Preliminary, Section 2 – Interpretation
Compliance history – if there is no means of checking compliance
history from other countries, why mention “and elsewhere”? The
definition appears to include car parking offences and speeding
charges. Presumably the intention concerns criminal offences.
Forest – (b) (iii) should explicitly include the genetic resources.
Forest conservation operations – (b) should include habitat and
landscape features.
Forest produce – (c) includes (a) and (b), making (a) and (b)
redundant. Include genetic resources in this definition.
Kaieteur National Park – the date of the Act is missing.
Publicly notify and public notice – should include posting to websites
and, as appropriate for large-scale, long-term concessions, notices
published outside Guyana.
Sawpit – is not defined.
Sustainable forest management – the word “amenities” is undefined, and
should be substituted by terms defined previously.
Section 3 – declaration of State forest
See general comment number 10 above. Guyana needs a conventional
reservation and settlement procedure, to replace this land-grabbing
intention.
Section 4 – purpose of Part 2
Should reference Article 36 in the National Constitution about the
management of Guyana’s natural resources.
Section 5 (1) (a) – Amerindians have rights of passage over public
lands, and anyone can use a road on public land if there is no trespass
(causing damage). These rights should be recognised in this Bill.
Section 5 (2) (e) – introduces definitions which are inappropriate in
forest legislation and should be dealt with, if at all, under
Amerindian legislation. Consequently, sub-section (3) should also be
deleted, and anyway is not appropriate in forest legislation.
Section 6 (2) (d) – as loosely worded now, could allow a concession
holder to infringe the rights and degrade the resources held by another
concession holder.
Section 6 (3) – the words “even if” are presumably inserted because the
GFC has failed by 2007 to implement the National Forest Policy 1997 and
the National Forest Plan 2001 which require strategic planning for
allocation of concessions and which ought to assign priorities in use
such that conflicts between harvest and no-harvest operations are
avoided.
We trust that the above examples of the many errors in Bill No. 21 of
2007, these taken only from the first section of Part 1, will convince
you of the need for a thorough overhaul of this Forest Bill 2007 and
which should now be undertaken by competent technical persons.
Signed:
Please find attached a file (contents also pasted in below) named
‘Guyana_petition_ForestBill200
the AFC Parliamentarians who have agreed to present the Petition to the
Members of the National Assembly on our behalf. This petition combines
the separate efforts of a number of persons. Please feel free to
circulate this updated draft Petition.
I am away from 28 September to 8 October, with no computer access
during that time. I am submitting this petition now to the AFC
Parliamentarians in the event that a sitting of the National Assembly
is convened on 11 October and before a further iteration of the
Petition can be ready - so that they can submit it on our behalf.
I would be happy to receive comments on this draft from you; however I
will not be able to read and act on those comments until sometime after
9 October 2007.
You can find a copy of Forest Bill 2007 on the GFC website, url =
http://www.forestry.gov.gy/. You can find the draft Forests Act 2004
and the Forest Bill 2007 in the August folder of
http://www.guyanaforestryblog
I am submitting separately to the AFC Parliamentarians only a list of
signatories received. You will have noted that I have not circulated
this list to date, in an attempt to protect signatories from
vilification.
Until later, Janette
GUYANA
COUNTY OF DEMERARA
In the matter of the WITHDRAWAL of
Bill number 21 of 2007:
Forest Bill 2007
PETITION
TO: The National Assembly of the
Co-operative Republic of Guyana
Public Buildings
Georgetown.
THE HUMBLE PETITION of we the undersigned citizens of Guyana who
respectfully request the withdrawal of Bill Number 21 of 2007, Forest
Bill 2007, is set out in three parts. Part 1 lists some observations on
individual sections in the Forest Bill 2007, with cross-reference to
the 6 February 2004 version. It notes a number of the sections and
clauses of the Draft Forests Act 2004 which have been excised from the
Forest Bill 2007 without explanation and justification for the
deliberate removal of some, and insertion of new clauses and sections
which, taken together, weaken the Forest Bill 2007. Part 2 sets out 11
general principles which we believe should guide the revision of the
Forests Act 1953 and all legislation. Part 3 lists some examples of the
many errors in Bill No. 21 of 2007 taken only from the first section of
Part 1 of the Forest Bill 2007, by way of illustrating the thorough
overhaul needed on this Forest Bill 2007 and which should now be
undertaken by competent technical persons.
The National Assembly should ensure that the key natural resources of
our country, on which the future sustainable development of Guyana
hinges, are managed as required by Article 36 in the National
Constitution 1980 and so as to maximize the net social benefit.
Background
More than half a century has passed since the 1953 Forests Act was
drawn up by the lawyer-forester W.A. Gordon to address the particular
problems of that era – primarily to create the classification of Crown
Forests (now State Forests), harmonise forestry-related legislation
scattered throughout other Acts with those in the new Act, de-link the
conservation and administration of forests from the revenue collection
focus of the Department of Lands and Mines, and create a Forest
Department.
2.1 The process of revising that 1953 Forests Act underwent several
iterations from the mid-1990s. The final publicly-available draft
Forests Act 2004 benefited from the vision for the forestry sector set
out in the National Development Strategy 2000-2010 and from broad
stakeholder consultations and international best practice at that time.
However, the legislative revisions of 1995-6 are now insufficient to
adjust to the newer international imperatives concerning trade in
tropical timbers and the need for independently verifiable proof of
legal and sustainable production.
The special hazard of Forest Bill 2007
Unlike the Draft Forests Act 2004, there are few safeguards in the
draft Forest Bill 2007 against a bureaucracy captured by special
interests. This change, a reflection of the exceptional profits to be
made from expanded Asian demand for raw materials especially in the
booming economies of China and India, deprives Guyana of the
opportunities to secure for our country a greater share in those
profits and without detriment to our long-term productivity. To make
that happen, we must ensure that the bureaucracy does not take to
itself discretionary powers without public oversight. Best
international practice is indeed in quite the opposite direction: to
capture excess rent through transparently-set charges, to reduce
discretion from bureaucrats, to insist on published criteria for
exceptional cases, and to increase public oversight especially through
parliamentary processes. Public notice has been reduced and highly
circumscribed. The draft Forest Bill 2007 was circulated only to you,
the Members of the National Assembly, on 2 August 2007 and only in
printed format. The draft Forest Bill 2007 and the ‘Final GFC Bill –
Nov 2006’ – were only placed on the GFC website sometime after 15
August 2007. The Draft Forests Act 2004 was more widely available in
print and electronic formats.
We note the simplicity and clarity of the Forests Act 1953 in
comparison with the convoluted and unclear wording in the Forest Bill
2007. This lack of clarity alone should cause this Bill to be sent
back for a thorough re-drafting.
We respectfully remind you of the historic responsibility before you to
review the Forest Bill 2007 section by section, clause by clause,
against the Draft Forests Act 2004, against the backdrop of the
changing circumstances of the forestry sector in our country today. We
urge you to be mindful of the urgent need to safeguard our sovereignty,
as well as seeking to ensure good governance, transparency in decision
making and accountability for decisions in all public institutions
charged with the administration of national patrimony. You may wish to
take note of a recent World Bank caution with respect to the award of
forest concessions, “Where the concession in effect transfers a public
property right into private hands, there may be traditional or
constitutional reasons to require higher-level approval, such as action
by the legislature, the head of government, or the head of state”
(Forest Law and Sustainable Development: addressing contemporary
challenges through legal reform. Law, Justice, and Development Series.
2007, p. 57. Washington D.C.: The World Bank).
We urge you to examine the systematic culling of all participatory
processes, oversight and best practice from the Draft Forests Act 2004,
including but not limited to the following fundamental revisions:
Part 1
Some observations on individual sections in the Forest Bill 2007, with
cross-reference to the 6 February 2004 version
1.1 Vesting of wide discretion and monopoly power in “the Commission”
1.1.1 There are over a dozen references in the Draft Forests Act 2004
to the Board of Directors of the Guyana Forestry Commission (GFC) and
none in the Forest Bill 2007. In its place, broad discretionary powers
are vested exclusively in the “Commission”. . Placing limits on a
discretionary power is a trend in modern legislation, aimed at making
public officers more accountable.
1.1.2 The over 30 references to the Minister in the Draft Forests Act
2004 have been reduced to fewer than five, thereby eliminating even the
nominal control by elected Ministers.
1.1.3 The Forest Bill 2007 transfers and enlarges broad powers to the
“Commission” without criteria for their use.
1.1.4 The procedures for competitive bidding set out in 16 (6) of the
Draft Forests Act 2004 have been neutered.
1.1.5 The provisions for indexation (against inflation and currency
movements) of volume charges and levies on forest produce and
administrative fees set out in s. 50(1) and for the charging of
interest on arrears (s. 51) of the Draft Forests Act 2004 have been
excised.
1.1.6 Fees for all applications under the Bill are dealt with in clause
80 – but are left to be determined by the Minister. The application fee
of US $20,000 for an Exploratory Permit (in 16 (2) of the Draft Forests
Act 2004) has been removed.
1.1.7 Discretionary power is granted in s. 13 (2) of the draft Forest
Bill 2007 to the Commission to waive a security bond; such a bond
provides the State with financial cover against environmental damage
and non-payment of charges, and was spelled out in s. 26 of the draft
Forests Act 2004.
1.2 Restriction of activities / Amerindian customary rights in State
Forests
1.2.1 Section 5. (2)(e) in the Forest Bill 2007 permits the granting of
a concession on claimed Amerindian land, thereby removing the safeguard
provided in the Forests (Amendment) (Exploratory Permits) Act 1997.
The saving of Amerindian customary rights, set out in Clause 17(3) of
the Draft Forests Act 2004 appears to have been excised.
1.2.2 Section 5. (2)(e) amounts to a saving of traditional Amerindian
rights in State forests, but there are two objectionable features to
it:
First, only rights, etc. held immediately before the coming into force
of the legislation will be saved. This freezes traditional rights at a
particular date, whereas the customs, practices and traditions of any
community of people are not static. If indigenous peoples were not able
to evolve and adapt to changing circumstances then they would have long
since become extinct. The restriction in this clause denies them that
freedom to adapt.
Second, only rights, etc. that are “exercised or performed sustainably
in accordance with the spiritual relationship of the group with the
land” are saved under this provision.
1.3 General saving of Amerindian rights – omitted
Clause 63 in the 2004 draft Forests Act has not been reproduced in the
draft Forest Bill 2007. That clause provided:
“63(1) For the purposes of this Act, all lands in State forests
occupied or used by Amerindian communities and all land necessary for
the quiet enjoyment by the Amerindians of any Amerindian settlement,
are deemed to be lawfully occupied by them.
(2) Nothing in this Act shall be construed to prejudice, alter, or
affect any right or privilege heretofore legally possessed, exercised
or enjoyed by any Amerindian in Guyana.”
This savings clause, in one form or another, has been in natural
resources legislation in Guyana from since the mid-nineteenth century.
The 2004 draft Forests Act, based on the 1989 Mining Act provision, is
strongly worded and could be construed as saving traditional rights
even in granted State forests.
Although clause 5(2)(e) of the draft Forest Bill 2007 saves traditional
rights in State forests, the omission of a clause comparable to 63(2)
set out above means that there is nothing to prevent the State from
issuing forest concessions on untitled Amerindian lands.
Further, although the Amerindian Act 2006 saves traditional Amerindian
rights in State lands/forests – this is expressly confined to the
provisions of that Act and therefore does not preclude the GFC from
issuing concessions on untitled lands. Finally, the omission of any
such general savings clause means that the provisions authorizing the
issue of a forest concession will probably operate to terminate
pre-existing rights over the area comprising the grant, at least in
relation to obtaining forest produce.
Guyana is unusual in not having a formal settlement procedure
associated with government attempts to declare public land as State
Forest or an area protected for conservation of (forest) habitat or
biodiversity. In the absence of integrated land use planning, such
declarations can appear arbitrary and unjust. There are ample and
detailed descriptions in the technical literature on the operation of
long-tested reservation and settlement processes, which should be built
into the revised Forest Bill. That should help to clarify customs,
privileges and rights associated with previous and current use of
natural resources. It could also provide the equivalent of a
roundtable for considering the increasing demands on natural resources,
and the conflicts which arise from increasing demographic pressure.
1.4 Private trading of public forest assets – s. 6
Clause 6. (1) among others in the Forest Bill 2007 could lead to the
legalization of the current illegal trading of forest concessions,
instead of requiring the GFC to develop and implement a Strategic Plan
for concession allocation before advertising new or repeat areas
(National Forest Policy of October 1997 (section III B 1 b) and the
National Forest Plan of February 2001 (section NFP320).
Given the present illegal trading of concessions, which has now
resulted in the concentration of the best stocked and the lion’s share
of State forests under the control of a few foreign companies, the
Forests Act should limit the transferability of concessions. The draft
Forest Bill 2007 does the opposite.
1.5 Grant/renewal of larger concessions – s. 8
The Commission is empowered to renew long-term large-scale forest
concessions in spite of their non-compliance with the terms of the
concession award (Section 6.(8)). This is predicated upon the approval
of a forest management plan and an annual operations plan for the
concession area sought. The rest of Forest Bill 2007 is entirely silent
as to substance or procedure applying to this requirement.
1.6 Exploratory permit – s. 9
The safeguards set out in the Forests (Amendment) (Exploratory Permits)
Act 1997 have been rendered useless as a block on piratical logging.
Clauses 9. (1), 9.(2)(b) among others in the Forest Bill 2007 allows
commercial logging during the period of an exploratory award (SFEP) so
as to recover a proportion of the investors' application fee and other
non-capital costs associated with gaining and operating the SFEP. As no
criteria are given, the investor can inflate costs to the point at
which the SFEP becomes indistinguishable from a Timber Sales Agreement.
1.7 Transfer of permits, concessions and licences – s. 15
This section needs revision to take account of the rampant illegal
sub-contracting of concessions which brings no economic or social
benefit to Guyana.
1.8 Community Forest Management Agreement (CFMA) – s. 11
What is striking about this clause is its obfuscation. It omits any
mention of rights to utilize forest produce in community forests, but
the substituted language does not spell out exactly what would be
permitted therein. Under sub-clause (2) it is provided (guardedly) that
a CFMA may help communities “benefit” from local forests but there is
no indication of how such benefits will come about. That some kind of
commercial activity is contemplated is clear because of the rest of the
provision that speaks of economic development and income generation.
This clause is also unconstitutional, at least insofar as it sanctions
the uncompensated appropriation of untitled Amerindian lands. Under
sub-clause (4) persons “having strong traditional ties to use of the
forest” must be given “a free and fair opportunity to join…” the group.
Since this formulation captures Amerindians who live on untitled lands
and possess traditional rights as recognised under the common law, the
law must provide for consultation with them, and in the event that they
(the Amerindians) do not wish to join the group, then the forest can
only be granted to third parties if said Amerindians are compensated
for the loss of their traditional rights.
The draft must therefore specify a procedure consistent with the
Constitution whereby persons fitting the description in 11(4) may be
promptly and adequately compensated if they withhold their consent –
which it fails to do [see recommendation for a formal settlement
procedure in 1.3 above].
1.9 Conservation on private lands – s. 31
It is not clear whether the provision requiring payment of compensation
[sub-clause (6)] meets the constitutional standard. In this respect the
Constitutional provision as amended in 2003 waters down the 1980
version, but even in its attenuated form the standard does not seem to
be met.
Under Article 142 of the Constitution as amended any law providing for
expropriation must require the “prompt payment of adequate
compensation”, but Forest Bill 2007 (s. 31) merely requires the payment
to the owner and lawful occupier “reasonable” compensation. These seem
to impose different standards (i.e., no mention at all of promptness –
an issue in expropriation cases in the Caribbean; and reasonableness
may be judged from a wider variety of considerations than adequacy).
Also, is a declaration under this provision intended to operate
indefinitely?
1.10 Code of Practice – s. 35
Any code of practice to be adopted will be an important document – it
will seek to regulate forest operations, breach of the code being a
criminal offence. This is a good thing, but to what extent will
stakeholders and rights-holders be able to contribute meaningfully to
the content of any such code of practice?
In answering this question, one is hampered by the guarded language of
the provision. 35(2)(a)(ii) merely provides that the Minister shall
notify the public of the “purport” of the proposed code and shall
receive written submissions thereafter. Written submissions are limited
to three aspects: the fact that a proposed code has been submitted to
the Minister, the purport of the proposed code and the location where
the proposed code may be inspected [see 35(2)(c)].
“Purport” means “purpose” or “intention” – this is not the same as
contents. Therefore on a very strict interpretation, does this
provision impose an obligation on the government to receive submissions
on the contents of the Code, as opposed to its mere intention or
purpose?
Semantics aside, and assuming that people are allowed to make
submissions on content, there is still no real obligation on the
government to take on board any comments so received. The government
has complete control over what goes into the Code – the GFC comes up
with it, they must “invite and receive” written submissions but do NOT
necessarily have to hold public hearings thereon, and thereafter
consultation is with the Minister. Nowhere in this is there a process
whereby non-governmental entities or persons can have a more meaningful
input. At the end of the day, all submissions can be rejected (i.e.,
consultation does not equal acceptance) for as the provision makes
clear, the Minister may either (a) adopt the code as is, (b) adopt it
with changes or (c) reject it.
Finally, although the Code is subject to negative resolution in
Parliament, in a situation of majority rule that is no protection.
And by the way, what happens if the Minister decides to reject the
Code? The draft is completely silent on this point – will it be subject
to further consultation or what?
1.11 Quality control – s. 42
Note that in coming up with guidelines by which timber is to be graded
and marked, the GFC may “exempt any class of persons, activities or
land”. [42(4)(c)]. This is yet another instance of discretionary powers
which do not spell out the reason for their existence. The provision
itself should give reasons defining the Commission’s power to make
exemptions.
1.12 Transfer pricing – s. 45
Section 45. (1) in the Forest Bill 2007 stipulates that the Forest
Products Marketing Council (FPMC) or a prescribed body will set the
true price of forest products traded. Standard neo-liberal economic
theory says that the free market will set the price, and this is
conventionally determined by the Cost, Insurance and Freight value
declared at the port of entry in the importing country, as a defence
against under-valuation and transfer pricing of exports. Beginning in
April 2007, for example, the FPMC began reporting higher sale prices
for purpleheart logs to the International Tropical Timber Organization
(Tropical Timber Market report) than the prices recorded in the FPMC
Market Reports circulated in Guyana. The discrepancies in the published
records of the FPMC should be reason enough for the Forests Act not to
empower this body to set the international prices of forest products.
1.13 Forest Officer – s. 53
Under 53(4)(a) a forest officer may “at any time, after being afforded
natural justice, be removed from office at the discretion of the
Commissioner”.
This provision is either poorly drafted or reflects retrograde policy.
Perhaps the Commissioner’s discretion to remove is constrained by the
results of the hearing, but the phrasing of the provision does not
necessarily suggest this. In any event, since Guyana already has
legislation governing employment and labour why is the Commissioner of
Forests being given a discretionary power such as this?
1.14 Powers to enter premises and conduct searches – ss. 54 et. seq.
Note all the powers to enter and search without a warrant. Since the
ammunition and narcotic offences of the late 1980s, this has been the
trend of legislation in Guyana – to whittle away at established common
law protections.
Allowing the police to stop and search individuals and vehicles or to
enter and search premises merely on reasonable suspicion opens the door
to abuse; in this draft Forest Bill 2007 the power is extended to
forest officers. This is an unjustifiable assault on civil liberties.
1.15 Powers to require answers – s. 61
Under this provision suspects must answer questions and even give a
signed statement. Do not be fooled by 61(2) since if one refuses to
answer under this apparent exception then such a course will impact
negatively on the suspect (i.e., an indication of guilt). This is
reinforced by the failure to make any such refusal to answer
inadmissible at trial.
This is a retrograde provision. However tough a stance towards criminal
activity it may encompass, it is against the trend in most civilized
countries where the right to silence (which includes the right to
remain silent during pre-trial questioning) forms a core component of
fair criminal investigations and a fair trial.
Given our oppressive history of policy brutality and forced
confessions, we should not be creating these powers. Let the State do
its investigative work and not invade the liberty of the subject.
1.16 Orders to desist – s. 62
Superficially read, this provision seems to operate as a substitute for
trial. On the mere suspicion of having committed an offence, a forest
officer can order a suspect to cease offending. Failure to abide by any
order made is an offence [see s. 68(a)(ix)]. But what happens to
persons who have rights under this or any other piece of legislation?
What procedure exists for establishing one’s legitimacy? How long does
an order made under this provision last? None of these issues is
addressed in this clause. In other words, what this provision means is
that persons may be deprived of legal rights upon the summary decision
of a State official, which is unlawful and unconstitutional.
Any order to desist should only be issued after an investigation is
conducted, and should in fact be issued by a neutral entity (magistrate
not forest officer).
1.17 Exemptions – s. 76
Another discretionary power: i.e, it gives the government power to
create special regimes outside of the protections conferred by this
Act.
1.18 Net forest revenue to the Consolidated Fund – s. 80
Clauses 80 (1)(d) and 80 (3) provides for only the royalties from small
concessions, the current State Forest Permissions, to be paid into the
Consolidated Fund. All the other forest charges would remain with the
GFC. This is just the opposite of repeated recommendations that the
GFC should have transparent and simplified charges, with the surplus,
net of operational expenses, to be paid into the Consolidated Fund.
The long-term GFC failure to pass over its surplus to the Ministry of
Finance provides an indication of the future fate of national wealth.
Part 2 – General principles that should guide the legislative process
2.2 Formulation of legislation by a participative process open to all
stakeholders (legitimately interested parties, not restricted to
primary stakeholders whose economic interests might be affected
positively or negatively by the legislation). The concentration of
previous discussions on bilateral debate between the Forest Products
Association (FPA) and the Guyana Forestry Commission (GFC), without an
independent chairman or professional facilitator, lengthened the
consultation period into years. As a result, the Forest Bill 2007 has
failed to adjust to the newer international imperatives concerning
trade in tropical timbers and the need for independently verifiable
proof of legal and sustainable production; these features were little
discussed at the time of the original formulation of the legislative
revision of 1995-6.
2.3 Given the geographic dispersion of forest-related stakeholders, a
concentration of consultation in Georgetown and restricted to industry
does not conform to best international practice.
2.4 Use of transparent process, with all relevant documents being
available on request to all stakeholders, perhaps for a nominal
administrative charge to avoid waste. The only justifications for
restriction of documents would be national security and commercial
confidentiality, with criteria defined and published openly prior to
the start of the legislative process.
2.5 During the consultations, participants treat each other
respectfully and have equal voices. Government agencies do not
over-rule other participants and do not have weighted votes. The
setting of some ground rules may be appropriate – for example, outside
the consultations, participants do not attribute views or statements
made during the consultations to named individuals or organisations.
2.6 Legislation and regulations are drafted with clarity of language,
using the simplest possible terms which are compatible with legal
specificity. The complex and at times ungrammatical language of the
Forest Bill 2007 needs to be thoroughly overhauled to improve clarity.
2.7 Technical wording and guidance can be drawn from FAO Forestry
Papers, the FAO Development Law Service and recent World Bank
documents, whose use should be conducive to greater clarity.
2.8 Harmonisation with other Laws of Guyana, avoiding duplication,
avoiding adding definitions unnecessarily – for example, on Amerindian
rights, privileges and customs – and removal of inconsistencies between
laws. There would be obvious advantages in harmonising forestry and
mining laws, especially as regards administration of concessions.
2.9 Providing for greater integration of laws, regulations and
procedures, especially in relation to integrated land use planning, an
integrated hinterland road network and the rehabilitation of a publicly
accessible integrated geographic information system – GINRIS, the
Guyana Integrated Natural Resources Information System, pioneered in
the late 1990s. Given the loss of maps and aerial photographs at the
GFC Head Office through neglect and flooding, the law should provide
for such maps (with associated textual descriptions) and GIS
(geographical information system) to be duplicated at regular and
frequent intervals in the National Archive. Public access and use
should be reserved only if explicit tests of national security or
commercial confidentiality can be proved; criteria should be built into
the law. Bearing in mind the increasing sophistication of Google Earth
and the international accessibility of such imagery, it would be
pointless for the government to seek to prevent access to what can be
obtained internationally. In particular, all State Forest boundary and
block maps, and all concession boundary maps, should be publicly
available. Such access will in any case be required for independent
forest monitoring if Guyana should seek a voluntary partnership
agreement with the European Union (EU) trading bloc for continued
exports of timber from Guyana into EU countries; under the EU Forest
Law Enforcement, Governance and Trade (FLEGT) process.
2.10 In best international practice, administrative discretion in law
is minimised. Where discretion is the alternative to prescriptions
covering a wide range of situations, criteria for the use of that
discretion should be included in the law. These criteria should be
explicit, objective and transparent. There should also be a public
appeals process associated with each instance of discretion in the law.
An appeals panel or tribunal should include at least two people not
employees of or associated with the national forest service;
association by membership of the Board of Directors or by employment as
an external consultant within the last two years would be examples of
disqualification from participation in such a panel or committee.
These provisions should apply to all levels of discretion, including
the Minister of Forestry, the Minister for Forestry, and the Guyana
Forestry Commission.
2.11 Setting out a formal settlement procedure in the revised Forest
Bill. In addition to the advantages stated in 1.3 and 1.8 above, that
should help to clarify the so far unresolved conflicts between mining
and other forms of land use, including forestry. The forest law
should have regard to the provisions in the National Constitution for
compensation for expropriated land.
2.12 The revised forest law should include wording which responds to
forest provisions in the UN Framework Convention for the Conservation
of Biological Diversity (CBD, which Guyana has signed/ratified) and the
Convention on International Trade in Endangered Species (CITES), where
such provisions are not already found in the Environmental Protection
Act of 1996.
Part 3
Some examples of the many errors in Bill No. 21 of 2007. Examples below
only from Part 1 and first page of Part 2.
Preliminary, Section 2 – Interpretation
Compliance history – if there is no means of checking compliance
history from other countries, why mention “and elsewhere”? The
definition appears to include car parking offences and speeding
charges. Presumably the intention concerns criminal offences.
Forest – (b) (iii) should explicitly include the genetic resources.
Forest conservation operations – (b) should include habitat and
landscape features.
Forest produce – (c) includes (a) and (b), making (a) and (b)
redundant. Include genetic resources in this definition.
Kaieteur National Park – the date of the Act is missing.
Publicly notify and public notice – should include posting to websites
and, as appropriate for large-scale, long-term concessions, notices
published outside Guyana.
Sawpit – is not defined.
Sustainable forest management – the word “amenities” is undefined, and
should be substituted by terms defined previously.
Section 3 – declaration of State forest
See general comment number 10 above. Guyana needs a conventional
reservation and settlement procedure, to replace this land-grabbing
intention.
Section 4 – purpose of Part 2
Should reference Article 36 in the National Constitution about the
management of Guyana’s natural resources.
Section 5 (1) (a) – Amerindians have rights of passage over public
lands, and anyone can use a road on public land if there is no trespass
(causing damage). These rights should be recognised in this Bill.
Section 5 (2) (e) – introduces definitions which are inappropriate in
forest legislation and should be dealt with, if at all, under
Amerindian legislation. Consequently, sub-section (3) should also be
deleted, and anyway is not appropriate in forest legislation.
Section 6 (2) (d) – as loosely worded now, could allow a concession
holder to infringe the rights and degrade the resources held by another
concession holder.
Section 6 (3) – the words “even if” are presumably inserted because the
GFC has failed by 2007 to implement the National Forest Policy 1997 and
the National Forest Plan 2001 which require strategic planning for
allocation of concessions and which ought to assign priorities in use
such that conflicts between harvest and no-harvest operations are
avoided.
We trust that the above examples of the many errors in Bill No. 21 of
2007, these taken only from the first section of Part 1, will convince
you of the need for a thorough overhaul of this Forest Bill 2007 and
which should now be undertaken by competent technical persons.
Signed:
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